Secretary of Labor v. Consolidation Coal Company

Plain-English summary

Consolidation Coal Company faced alleged violations at several West Virginia mines involving belt examinations, unsupported roof, obstructions, roof supports, fire sensors, haulage protection, ventilation, float coal dust, bleeder evaluation, combustible material, and preshift examinations. Judge Paul Merlin approved settlements totaling $7,520, modified Orders 3105859 and 3103488 from section 104(d)(2) orders to section 104(a) citations, and vacated Citation 3103498 because the Secretary's safeguard theory had been undermined by prior ALJ decisions and MSHA was reexamining its policy. The approved amounts included the original assessments for several items and reduced amounts where the evidence could support less negligence or gravity than first assessed. The order required payment within 30 days.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202, 75.202(b), 75.303, 75.316, 75.400, 75.1105, 75.1403, 75.1403-10(e), and 75.220(a)(1)
• Outcome: Settlements totaling $7,520 were approved, two orders were modified to section 104(a) citations, and one citation was vacated.
• Key point: Settlement terms reflected the evidentiary risks and penalty factors in each docket, while the safeguard-based citation was vacated.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                           July 25, 1989

          SECRETARY OF LABOR,                         :                    CIVIL PENALTY PROCEEDINGS
            MINE SAFETY AND HEALTH                    :
            ADMINISTRATION (MSHA),                    :                    Docket No. WEVA 89-119
                          Petitioner                  :                    A. C. No. 46-01433-03863
                                                      :
                     v.                               :                    Loveridge No. 22 Mine
                                                      :
          CONSOLIDATION COAL COMPANY,                  :                    Docket No. WEVA 89-120
                            Respondent                :                    A. C. No. 46-01453-03845
                                                      :
                                                      :                    Docket No. WEVA 89-121
                                                      :                    A. C. No. 46-01453-03846
                                                      :
                                                      :                    Humphrey No. 7 Mine
                                                      :
                                                      :                    Docket No. WEVA 89-122
                                                      :                    A. C. No. 46-01968-03794
                                                      :
                                                      :                    Blacksville No. 2 Mine
                                                      :
                                                      :                    Docket No. WEVA 89-132
                                                      :                    A. C. No. 46-01867-03789
                                                      :                    Blacksville No. 1 Mine
                                                      :
                                                      :                    Docket No. WEVA 89-133
                                                      :                    A. C. No. 46-01454-03771
                                                      :                    Pursglove No. 15 Mine
                                                      :
                                                      :                    Docket No. WEVA 89-136
                                                      :                    A. C. No. 46-01318-03866
                                                      :                    Robinson Run No. 95 Mine

                                             DECISION

          Appearances:      Nanci A. Hoover, Esq., Office of the Solicitor
                            U. S. Department of Labor, Philadelphia,
                            Pennsylvania, for the Petitioner;
                            Michael R. Peelish, Esq., Consolidation Coal
                            Company, Pittsburgh, Pennsylvania, for the
                            Respondent.

          Before:           Judge Merlin

               The above-captioned cases were the subjects of prehearing
          and hearing orders. Preliminary statements were filed and a
          prehearing conference was held on July 10, 1989. When the cases
          came on for hearing on July 11, 1989, counsel for both parties
          advised that in one instance the citation was being vacated and
          that in the others approval for recommended settlements was being
          sought. Cases other than those captioned above were heard on the
          merits at the same time.

                     WEVA 89-119

 Section 104(d)(2) Order No. 3106488 was issued for a violation of

30 C.F.R. § 75.303. A preshift examination of a belt conveyor was
inadequate. At the hearing the Solicitor advised that evidence at
trial would support the MSHA evaluation of high gravity and
negligence. The Solicitor further advised that the proposed
settlement was for the original assessment of $1,000. Operator's
counsel did not object. The settlement was approved from the bench.

 Section 104(d)(2) Order No. 3105859 was issued for a violation

of 30 C.F.R. § 75.202. A utility man was observed under
unsupported roof in the 4 left longwall section. The original
assessment was $900 and the recommended settlement was $500. The
Solicitor explained that the order was being modified to a 104(a)
citation and that negligence was reassessed as moderate. According
to the Solicitor she could not prove the existence of aggravated
conduct as required by the Commission's precedent for
"unwarrantable failure," including Quinland Coals, Inc., 10 FMSHRC
705 (June 1988), Southern Ohio Coal Co., 10 FMSHRC 138 (February
1988), Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (December 1987),
and Emery Mining Co., 9 FMSHRC 1997 (December 1987). The operator's
foreman had given the utility man instructions regarding his work
and had left the area for a few minutes, which was when the
inspector arrived. The foreman's instructions were general in
nature, but could have been carried out by the utility man without
exposing himself to the unsupported roof. In light of the foregoing
circumstances and mindful of Commission precedent regarding
"unwarrantable failure," the recommended settlement was approved
from the bench.

                     WEVA 89-120

 Section 104(d)(2) Order No. 3113143 was issued for a violation

of 30 C.F.R. § 75.1403. Intermittent locations between shields of a
longwall face where men traveled were not kept free of obstructions.
Gravity and negligence were rated as high. At the hearing the
Solicitor advised that the proposed settlement was for the original
assessment of $850. Operator's counsel did not object. The
settlement was approved from the bench.

 Section 104(d)(2) Order No. 3103486 was issued for a violation

of 30 C.F.R. § 75.220(a)(1). The approved roof control plan was
violated because supplemental supports were not installed where bad
roof conditions were present at a return entry.

 The original assessment was $750 and the recommended settlement

was $550. The Solicitor explained that the reduction from the
original assessment was justified because evidence at trial might
not support the inspector's initial evaluation of high operator
negligence. The inspector thought that chalk marks on broken
timbers in the area indicated the preshift examiner's knowledge of
the missing supports, but other individuals also had chalk and the
examiner denied making these marks on the broken timbers. Based upon
the foregoing, I approved the recommended settlement from the bench.

 Section 104(d)(2) Order No. 3103488 was issued for a violation

of 30 C.F.R. § 75.1103-4(a)(1). Automatic fire sensors were not
provided on the 7 North belt for a length of about 450 feet. The
original assessment was $750 and the recommended settlement was
$170. The Solicitor explained that the order was being modified to
a 104(a) citation and that negligence was reassessed as moderate.
Further investigation disclosed that the sensors had been
deliberately removed from their locations above the belt line and
thrown into adjacent crosscuts by unknown persons. The inspector
could not establish how long the sensors had been missing and the
operator was prepared to offer the testimony of the preshift
examiner that all fire sensors were in place when the preshift
examination was performed. Accordingly, negligence was less than
initially thought and "unwarrantable failure" could not be found in
accordance with Commission precedent.

 In addition, gravity was somewhat less than the inspector first

estimated because the operator had in place another system which
could detect the by-products of combustion in very small quantities
and give a warning to miners working inby the location of the
combustion. Based upon the foregoing, I approved the recommended
settlement from the bench.

                     WEVA 89-121

 Citation No. 3103498 was issued for a violation of 30 C.F.R.

§ 75.1403-10(e). This section provides that positive-acting
stopblocks or derails should be used where necessary to protect
persons from the danger of runaway haulage equipment. Pursuant to
an underlying Notice to Provide Safeguards first issued in 1972,
MSHA declined to allow a skid to be used as a positive-acting
stopblock. In the cited condition three mine cars parked in the
fire spur at portal bottom area were blocked with a skid.

 At the hearing the Solicitor pointed out that a series of

Administrative Law Judge decisions over the last several years had
been adverse to MSHA on the way it issues safeguards: BethEnergy
Mines Inc., 11 FMSHRC 942 (May 1989), Southern Ohio Coal Co., 10
FMSHRC 963 (August 1988), and U.S. Steel Mining Co., 4 FMSHRC 526
(March 1982). The Solicitor stated that as a result MSHA was
reexamining its policy in this area. In light of the foregoing, the
citation was vacated from the bench. The penalty petition is
dismissed insofar as this item is concerned.

                     WEVA 89-122

 Section 104(d)(2) Order No. 2708034 was issued for a violation

of 30 C.F.R. § 75.1105. The air ventilating the energized power
center on an old longwall section was not coursed directly into the
return. Gravity and negligence were rated as high. At the hearing
the Solicitor advised that the proposed settlement was for the
original assessment of $950. Operator's counsel did not object. The
settlement was approved from the bench.

 Section 104(d)(2) Order No. 2944372 was issued for a violation

of 30 C.F.R. § 75.400. Float coal dust had accumulated on a belt
structure and on the water line, and fine coal and dust had
accumulated under the bottom belt of the automatic take-up unit.
The original assessment was $950 and the recommended settlement was
$400. The Solicitor explained that the reduction was justified
because although the inspector estimated that the conditions took
over a month to develop, the operator was prepared to offer evidence
that the condition was not present during the preshift and that
several MSHA personnel recently had been in the immediate area. The
Solicitor did not agree with all the operator's assertions, but she
stated she could not dispute the fact that several inspectors had
passed through the area within the preceding few weeks. In addition,
the Solicitor could not dispute that the operator was able to abate
the violation within 25 minutes of the issuance of the order.
Operator's counsel advised that the case was essentially a factual
judgment call and not of any precedent-setting nature. In light of
the foregoing, the settlement was approved from the bench.

                     WEVA 89-132

 Section 104(d)(2) Order No. 2943736 was issued for a violation

of 30 C.F.R. § 75.316. A bleeder evaluation point on a longwall
previously approved by a district manager had been changed and
relocated by the operator approximately 1000 feet inby. The
original assessment was $700 and the recommended settlement was
$500. The Solicitor advised that she probably could not prove that
the violation was significant and substantial. She stated that the
evidence at trial would demonstrate that the district manager
eventually approved the new location used by the operator as the
bleeder evaluation point. Although there is uncontroverted evidence
that the gob on the longwall was not being ventilated as intended
by the ventilation plan and that the direction of the airflow had
reversed, the Solicitor stated she could not demonstrate that the
failure of the operator to obtain the district manager's approval
for the new bleeder evaluation point resulted in a reasonable
likelihood of the hazard resulting in an injury. In light of the
foregoing, the settlement was approved from the bench.

                     WEVA 89-133

 Section 104(d)(2) Order No. 3103459 was issued for a violation

of 30 C.F.R. § 75.400. Combustible material in the form of loose
coal, coal dust, and float coal dust had accumulated under the
bottom belt between the tension rollers and under the drive unit of
a drive belt. Gravity and negligence were rated as high. At the
hearing the Solicitor advised that the proposed settlement was for
the original assessment of $900. Operator's counsel did not object.
The settlement was approved from the bench.

 Section 104(d)(2) Order No. 3103460 was issued for a violation

of 30 C.F.R. § 75.303. Adequate preshift examinations had not been
made on certain belts. The original assessment was $1,000 and the
recommended settlement was $700. The Solicitor advised the reduction
was justified because evidence at trial might not support the
inspector's evaluation of the operator's negligence. Although there
is no doubt that there were hazardous conditions and violations,
MSHA's witness had no firsthand knowledge of the extent of these
hazardous conditions during the preshift examination and could only
have expressed the opinion that the conditions were obvious at the
time of the preshift examination. The operator would offer testimony
of the preshift examiner to controvert the Secretary's opinion
evidence. In light of the foregoing, the settlement was approved
from the bench.

                    WEVA 89-136

 Section 104(d)(2) Order No. 3119427 was issued for a violation

of 30 C.F.R. § 75.202(b). According to the Solicitor the approved
roof control plan was not being complied with because supplies were
being stored in the face of the heading by persons who traveled
under unsupported roof. Operator's counsel expressed the view that
miners were not under unsupported roof but he did not believe this
case was an appropriate vehicle to test this issue, which was being
presented in other cases. The Solicitor advised that the proposed
recommended settlement was for the original assessment of $1,000.
Operator's counsel did not object. The settlement was approved from
the bench.

                        ORDER

 It is ORDERED that Order Nos. 3105859 and 3103488 be MODIFIED

to 104(a) citations.

 It is further ORDERED that Citation No. 3103498 be VACATED.

 In light of the foregoing, it is further ORDERED that the

proposed settlements be APPROVED and the following amounts be
ASSESSED:

 Citation or Order No.                                      Amount
 3106488                                                   $1,000
 3105859                                                      $500
 3113143                                                      $850
 3103486                                                      $550
 3103488                                                      $170
 3103498                                                   VACATED
 2708034                                                      $950
 2944372                                                      $400
 2943736                                                      $500
 3103459                                                      $900
 3103460                                                      $700
 3119427                                                    $1,000
                                                           $7,520

 It is further ORDERED that the operator PAY $7,520 within 30

days from the date of this decision.

                                                                         Paul Merlin
                                                                         Chief Administrative Law Judge

Distribution:
Nanci A. Hoover, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 1448, Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Basil Callen, UMWA, 309 Wagner Road, Morgantown, WV 26505
Robert Stropp, Esq., UMWA, 900 15th Street, N.W., Washington, DC
20005 (Certified Mail)

                                                                         1335